EDITOR’S NOTE: First posted at The Shipler Report.
The truly serious problem behind the controversial memo released by the House Intelligence Oversight Committee is not so much political as it is constitutional. It is the flawed process of secret-intelligence warrants that enable government authorities to do end runs around the Fourth Amendment. That broader issue underlies the question of how the FBI got a warrant to eavesdrop on Carter Page, one of President Trump’s campaign aides.
Now that Republicans have suddenly discovered their keen interest in civil liberties (albeit for political reasons), they might well revisit their unyielding support of the loosened standards for obtaining warrants that they pushed through in a panic right after 9/11. With the acquiescence of Democrats, the Patriot Act—opposed by only one senator, Russ Feingold of Wisconsin—shot holes through the sensible restrictions on monitoring Americans’ communications.
First, a bit of history. The Framers, reacting to the British use of writs of assistance to search whole towns for contraband in colonial times, wrote the Fourth Amendment to guard against government intrusion into a citizen’s zone of privacy. Although the word “privacy” does not appear in the Constitution, it is heavily implied and is woven into numerous court opinions.
Significantly, the Bill of Rights assumes that the people possess rights inherently, not that they are given rights by the government. The Fourth Amendment declares: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The terms “unreasonable,” “probable cause,” and “particularly” are among the most commonly debated in criminal cases where searches produce evidence that defense attorneys seek to suppress. Did the police officer act reasonably? Did she have probable cause to believe that such evidence of a crime would be found at a specific time and place? Was the search narrowly tailored to focus only on that purported evidence? And so on.
During the war on drugs, the Fourth Amendment has been severely undermined by court opinions giving authorities increasing latitude to search without warrants. But most dramatic has been the evasion of the Fourth Amendment to combat terrorism since 9/11.
Contrary to the upstanding portrait of a neutral FBI being painted by Democratic leaders during the current Russia investigation, the agency—and certain agents—have been driven by agendas. The FBI has zealously used informants to lure hapless wannabes into fictitious terrorist plots, then prosecuted them with ostentatious publicity; it has filtered and warped evidence to support stubborn theories of crimes; and during the Cold War, it conducted illegal, warrantless surveillance and played outrageous tricks on dissidents, even once attempting to provoke Martin Luther King Jr. into suicide.